Citation Nr: 0629628
Decision Date: 09/18/06 Archive Date: 09/26/06
DOCKET NO. 99-20 403A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUES
1. Entitlement to an assignment of an initial rating in
excess of 10 percent for residuals of a right wrist injury.
2. Entitlement to an assignment of an initial rating in
excess of 10 percent for residuals of a left wrist injury.
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
M. N. Hyland, Associate Counsel
INTRODUCTION
The veteran had active duty from May 1966 to March 1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 1998 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA). This matter was previously before the Board and was
remanded in September 2005.
In November 2003, the veteran testified at an RO hearing, in
essence, that he believes he has additional disability of
each upper extremity, beyond what is contemplated by his
current service-connected bilateral wrist and left elbow
disabilities. The Board finds that the veteran has raised
claims for service connection additional right and left upper
extremity disability and an increased rating for his service-
connected left elbow disability. These matters are referred
to the RO for appropriate action.
FINDINGS OF FACT
1. The veteran's service-connected right wrist disability is
productive of limitation of motion, pain and lack of
endurance with no evidence of ankylosis.
2. The veteran's service-connected left wrist disability is
also productive of limitation of motion, pain and lack of
endurance with no evidence of ankylosis.
CONCLUSIONS OF LAW
1. The criteria for an initial scheduler rating in excess of
10 percent for residuals of a right wrist injury have not
been met. 38 U.S.C.A. §§ 1155, 5013, 5103(a), 5107(b) (West
2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71(a),
Diagnostic Codes 5214, 5215 (2006).
2. The criteria for an initial scheduler rating in excess of
10 percent for residuals of a left wrist injury have not been
met. 38 U.S.C.A. §§ 1155, 5013, 5103(a), 5107(b) (West
2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71(a),
Diagnostic Codes 5214, 5215 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A,
5107 (West 2002). This legislation provides, among other
things, for notice and assistance to claimants under certain
circumstances. VA issued final rules to amend adjudication
regulations to implement the provisions of the VCAA. See 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)) (2005). The
intended effect of the regulation is to establish clear
guidelines consistent with the intent of Congress regarding
the timing and the scope of assistance VA will provide to a
claimant who files a substantially complete application for
VA benefits, or who attempts to reopen a previously denied
claim.
In order to be consistent with 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the
claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek
to provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request
or tell the claimant to provide any evidence in the
claimant's possession that pertains to the claim, or
something to the effect that the claimant should "give us
everything you've got pertaining to your claim(s)." This
latter "fourth element" of the notice requirement comes
from the language of 38 C.F.R. § 3.159(b)(1).
VA has fulfilled its duty to notify the veteran in this case.
In the October 2005 and March 2006 letters, VA informed the
veteran of the applicable laws and regulations, including
applicable provisions of the VCAA, the evidence needed to
substantiate the claim, and which party was responsible for
obtaining the evidence. See Quartuccio v. Principi, 16 Vet.
App. 183, 187 (2002). In the letters, VA informed the
veteran that it would obtain the available records in the
custody of federal departments and agencies and request
medical records from identified private health care
providers. The letters also directed the veteran to tell the
VA about any additional information or evidence that he
wanted the VA to try to get for him in relation to his case
and the October 2005 letter explicitly directed the veteran
to send any pertinent evidence he had in his possession.
Through the October 2005 and March 2006 letters noted above,
the veteran was notified of the evidence needed to
substantiate his claim and the avenues through which he might
obtain such evidence, and of the allocation of
responsibilities between himself and VA in obtaining such
evidence. Id; see also Beverly v. Nicholson, 19 Vet. App.
394, 403 (2005) (outlining VCAA notice requirements);
Mayfield v. Nicholson, 19 Vet. App. 103 (2005) (reversed on
other grounds No. 05-7157 (Fed. Cir. Apr. 5, 2006)).
In this case, October 2005 VCAA letter sent to the veteran
directed him to submit to the VA any other evidence or
information that the pertained to his claim. Thus, the
veteran was fully notified of the need to give to VA any
evidence pertaining to his claim.
The United States Court of Appeals for Veterans Claims'
(Court's) decision in Pelegrini v. Principi, 18 Vet. App.
112 (2004) held, in part, that a VCAA notice, as required by
38 U.S.C. § 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction
(AOJ) decision on a claim for VA benefits. In the present
case, the RO furnished VCAA notice to the veteran subsequent
to the initial denial of the veteran's claims.
Because the VCAA notice in this case was not provided to the
veteran prior to the initial adverse RO decision, the timing
of the notice does not comply with the express requirements
of the law as found by the Court in Pelegrini. However,
following the September 2005 Board remand, the issues were
readjudicated by the RO. See April 2006 supplemental
statement of the case. It is also pertinent to note that the
evidence does not show, nor does the veteran contend, that
any notification deficiencies, either with respect to timing
or content, have resulted in prejudice. See Mayfield, supra
(due process concerns with respect to VCAA notice must be
pled with specificity).
The Board also notes that, during the pendency of this
appeal, on March 3, 2006, the Court issued a decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006), which held that the VCAA notice requirements
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to
all five elements of a service connection claim. Those five
elements include: 1) veteran status; 2) existence of a
disability; (3) a connection between the veteran's service
and the disability; 4) degree of disability; and 5) effective
date of the disability. The Court held that upon receipt of
an application for a service-connection claim, 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id. In March 2006, VA sent the veteran a letter which
complied with the requirement of Dingess in that it informed
the veteran of the criteria necessary to establish disability
ratings and effective dates for his right and left wrist
disabilities.
It is also pertinent to note that the evidence does not show,
nor does the appellant contend, that any notification
deficiencies, either with respect to timing or content, have
resulted in prejudice. See Mayfield v. Nicholson, 19 Vet.
App. 103, 121 (2005) (due process concerns with respect to
VCAA notice must be pled with specificity), rev'd on other
grounds 444 F.3d 1328 (Fed. Cir. 2006).
The Board also finds that all necessary assistance has been
provided to the veteran. The RO has made numerous attempts
to assist the veteran in obtaining the evidence necessary to
substantiate his claims, including obtaining medical records
identified by the veteran. The record includes service
medical records and VA medical records. The veteran was
afforded several VA examinations sufficient for ratings
purposes. Under the circumstances, the Board finds that the
record as it stands includes sufficient competent evidence to
decide these claims. See 38 C.F.R. § 3.159(c)(4). The Board
again emphasizes that no additional pertinent evidence has
been identified by the veteran as relevant to this issue.
Under these circumstances, the Board finds no further action
is necessary to assist the veteran with the claims.
In view of the foregoing, the Board finds that VA has
fulfilled its duty to notify and assist the appellant in the
claim under consideration and that adjudication of the claim
at this juncture, without directing or accomplishing any
additional notification and or development action, poses no
risk of prejudice to the appellant. See, e.g., Bernard v.
Brown, 4 Vet. App. 384, 394 (1993).
Analysis
The present appeal involves the veteran's claim that the
severity of his service-connected right and left wrist
disabilities warrants higher disability ratings. Disability
ratings are determined by the application of the Schedule For
Rating Disabilities, which assigns ratings based on the
average impairment of earning capacity resulting from a
service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R.
Part 4. Where there is a question as to which of two ratings
shall be applied, the higher rating will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet.App. 589, 594 (1991). Since the veteran is
appealing the original assignment of a disability rating
following an award of service connection, the severity of his
service connected disabilities is to be considered during the
entire period from the initial assignment of the rating to
the present time. See Fenderson v. West, 12 Vet. App. 119
(1999).
It should also be noted that when evaluating disabilities of
the musculoskeletal system, 38 C.F.R. § 4.40 allows for
consideration of functional loss due to pain and weakness
causing additional disability beyond that reflected on range
of motion measurements. DeLuca v. Brown, 8 Vet. App. 202
(1995). Further, 38 C.F.R. § 4.45 provides that
consideration also be given to weakened movement, excess
fatigability and incoordination.
The veteran's right wrist disability is currently rated under
Diagnostic Code 5215, which provides a 10 percent rating for
dorsiflexion less than 15 degrees or palmar flexion limited
in line with forearm. 38 C.F.R. § 4.71(a), Diagnostic Code
5215. 10 percent is the maximum rating allowed under
Diagnostic Code 5215. The only other Diagnostic Code
applicable to wrist disabilities is Diagnostic Code 5214,
which provides for higher ratings for favorable and
unfavorable ankylosis of the wrist, to include a 30 percent
rating for the major hand and a 20 percent rating for the
minor hand for ankylosis of the wrist favorable in 20 to 30
degrees dorsiflexion. 38 C.F.R. § 4.71(a), Diagnostic Code
5214.
Turning to the relevant medical evidence, the Board notes
that the July 1998, November 2001, November 2002 and July
2003 VA examination reports all document limitation to
limitation to palmar flexion and dorsiflexion; however,
following the July 1998 and November 2002 VA examinations,
the examiners specifically noted that the veteran does not
have ankylosis of either wrist.
The Board has considered 38 C.F.R. §§ 4.40 and 4.45, and
DeLuca, supra and acknowledges that the July 1998 VA
examination showed lack of endurance in the wrists following
repetitive use. The November 2001 VA examination revealed
the veteran's range of motion was additionally limited by
pain. However, additional compensation is not warranted
under these provisions because the current rating of 10
percent for each wrist is the maximum evaluation allowed for
limitation of motion of a wrist. See Johnston v. Brown, 10
Vet. App. 80, 85 (1997).
In making these determinations, the Board has considered the
provisions of 38 U.S.C.A. § 5107(b), but there is not such a
state of approximate balance of the positive evidence with
the negative evidence to otherwise warrant a grant of a
scheduler rating in excess of 10 percent for either wrist.
In addition to the Board's referral of the issue of service
connection for additional disability affecting the forearm or
arm to the RO (see introduction, supra), the question remains
whether an extraschedular rating can be granted for either
wrist.
There is medical evidence of functional limitations stemming
from the veteran's wrist disabilities as described in the VA
examination reports, such as weakened grip strength,
difficulty with carpentry, driving, and typing and lack of
dexterity of the hands and fingers. However, aside from the
fact that the veteran is separately rated for hand
disabilities that are not at issue here and is currently in
receipt of a combined service-connected rating of 100 percent
plus special monthly compensation based upon a rating of 100
percent for PTSD other independent disabilities rated at 60
percent (38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i)), the
Board finds that the preponderance of the evidence is against
a finding of any unusual or exceptional circumstances, such
as marked interference with employment or frequent periods of
hospitalization related to the veteran's wrist disabilities
alone, which would take the veteran's case outside the norm.
Therefore, referral by the RO to the Chief Benefits Director
of VA's Compensation and Pension Service, under 38 C.F.R. §
3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App.
337 (1996).
ORDER
Entitlement to assignment of an initial scheduler rating in
excess of 10 percent for residuals of an injury of the right
wrist is not warranted.
Entitlement to assignment of an initial scheduler rating in
excess of 10 percent for residuals of an injury of the left
wrist is not warranted.
______________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs